Marriage ban doesn?t stop it from covering unmarried couples

by Eric Resnick

Columbus--The state?s domestic violence law still applies to unmarried couples both straight and gay, ruled the Ohio Supreme Court this week, and it is not affected by the 2004 constitutional amendment banning same-sex marriage.

The 6-1 decision, which is the high court?s first look at the amendment, will be seen as a victory by some LGBT rights advocates because the justices chose to narrowly apply the amendment?s second sentence that bars recognition of ?relationships of unmarried individuals.?

Other equal rights advocates may be less enthusiastic because the court let the amendment stand, and did not go far enough to limit it in other areas affecting LGBT families.

The case concerned Michael Carswell, a Warren County man who was indicted for domestic violence after he allegedly assaulted his female partner, to whom he was not married.

Carswell argued that the decades-old domestic violence law?s application to a person ?living as a spouse? had been voided by the amendment?s second sentence.

Dozens of other unmarried domestic violence defendants have made similar cases around the state. This ruling settles all of them.

The gay and lesbian Lambda Legal Defense, the ACLU, and other amendment opponents filed briefs backing the Warren County prosecutor, whose position was upheld by the court.

The amendment?s proponents Citizens for Community Values sided with Carswell, whose argument was ultimately rejected.

Writing for the majority, Chief Justice Thomas Moyer stated, ?We hold therefore, that the term ?living as a spouse? as defined [in Ohio law] merely identifies a particular class of persons for the purposes of the domestic violence statutes.?

?Persons who satisfy the ?living as a spouse? category are not provided any of the rights, benefits, or duties of marriage,? Moyer continued.

The phrase ?living as a spouse? in the domestic violence law ?does not create or recognize a legal relationship that approximates the designs, qualities, or significance of marriage . . .? Moyer wrote, paraphrasing the amendment?s second sentence.

The full sentence reads: ?This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effect of marriage.?

In addition to the definition of ?living as a spouse,? the case also centered around whether or not cohabitation creates a status approximating marriage.

Had the high court ruled the other way, the domestic violence law would not have applied to unmarried couples, same-sex or opposite-sex.

What made the decision difficult is that earlier rulings--which have protected LGBT couples--suggest that cohabitation is a status.

In the other similar domestic violence cases, lower court decisions were a mixed bag. Judges who upheld the domestic violence indictments said the voters could not possibly have intended the amendment to limit the domestic violence law.

Judges who said it did limit the law held that the amendment should be taken at face value.

In this case, the trial court dismissed Carswell?s domestic violence charges, saying that the legal status created by cohabitation is unconstitutional under the amendment. The Twelfth District Court of Appeals disagreed and reinstated the charges. The Supreme Court heard the case on December 12.

Moyer was joined in the majority by Justices Evelyn Lundberg Stratton, Maureen O?Connor, Terrance O?Donnell, and Judge Judith L. French of the Tenth District sitting for retiring Justice Alice Robie Resnick.

Justice Paul Pfeifer agreed with the judgement only, but did not write a separate opinion.

Justice Judith Lanzinger dissented, although she did so ?reluctantly and regretfully.?

?I believe that we must [interpret the amendment] according to its text, not as we speculate it may have been intended,? Lanzinger wrote.

?Using the term ?living as a spouse? within the definition of ?family or household member? clearly expresses an intent to give an unmarried relationship a legal status that approximates the ?effect of marriage,? ? Lanzinger continued. ?By using the term ?living as a spouse? to identify persons whom the statutes protect and against whom prosecution may be instituted, the General Assembly inherently equates cohabitating unmarried persons with those who are married . . .?

Other matters which will require the court to further interpret the marriage ban amendment, including domestic partner benefits for state employees, are working their way through the lower courts.